Brown v. Clarke

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

LATRON DUPREE BROWN, )

)

Petitioner, ) Civil Action No. 7:19-cv-00497

)

v. )

) By: Elizabeth K. Dillon

HOWARD W. CLARKE,DIRECTOR, ) United States District Judge

VIRGINIA DEPARTMENT OF )

CORRECTIONS, )

)

Respondent. )

MEMORANDUM OPINION

In 2016, petitionerLatron Dupree Brownpleaded guilty in state court to six counts of

distribution of cocaine, possession of a firearm while in possession of drugs, possession of a firearm

by a felon within ten years, and obstruction of justice. Brown was sentenced to 152 months in

prison, with all but fifteen years and six months suspended. (Dkt. No. 12-1.)

Before the court is Brown’s petition for a writ of habeas corpus. See 28 U.S.C. § 2254. The

respondent moves to dismiss. (Dkt. No. 10.) For the reasons stated below, respondent’s motion to

dismiss will be granted, and Brown’s petition will be denied.

I. BACKGROUND

In state court, Brown entered a conditional plea, which allowed him to appeal the trial

court’s denial of his motion to suppress evidence based on an alleged illegal search of his residence.

On appeal, the Court of Appeals of Virginiaheld that the trial court did not err by denying Brown’s

motion to suppress. Brown also argued that the trial court erred by holding that he had waived

representation by counsel. The court of appeals held that Brown waived this argument by the entry

of his guilty plea. Brown v. Commonwealth, 802 S.E.2d 197 (Va. Ct. App. 2017). The Supreme

Court of Virginia refused Brown’s petition for an appeal. (Dkt. No. 12-3.)

On August 9, 2018, Brown filed a petition for a writ of habeas corpus in the Supreme Court

of Virginia. (Dkt. No. 12-4.) Brown alleged the following claims in his state court petition: (1)

officers conducted an illegal protective sweep of his residence; (2) denial of right to assistance of

counsel when the court found that Brown had waived his right to counsel when Brown asked for the

removal of his attorneys; (3) denial of right to effective assistance of counsel when counsel failed to

investigate, allowed an external impediment to preclude a certain defense, failed to object to a date

set outside of the speedy trial statute, and subpoenaed the wrong phone number; and (4) denial of

right to proceed without interference by standby counsel when standby counsel advised Brown to

take a plea offer and passed Brown a note from the courtroom that read “take the plea.” (Id.) The

court dismissed the petition on March 27, 2019. (Id.)

II. ANALYSIS

A. AEDPA Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) circumscribes a

federal court’s ability to issue a writ of habeas corpus “on behalf of a person in custody pursuant to

the judgment of a State court.” 28 U.S.C. § 2254(d). Under AEDPA, a federal court may not grant

habeas relief on a claim that the state postconviction court rejected on the merits unless that court’s

determination “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” id.§ 2254(d)(2), or “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme Court of

the United States,”id.§ 2254(d)(1).

A state court’s decision involves an unreasonable application of such clearly established law

when the court “identifies the correct governing legal rule from th[e Supreme] Court’s cases but

unreasonably applies it to the facts of the particular state prisoner’s case.” Williams v. Taylor, 529

U.S. 362, 407(2000)(O’Connor, J., delivering the opinion of the Court with respect to Part II). By

“clearly established,” § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of th[e Supreme]

Court’s decisions as of the time of the relevant state-court decision.” Id. at 412. And to be

“unreasonable,” the state court’s application ofthat law must be “objectively unreasonable,” not

simply incorrect. Barnes v. Joyner, 751 F.3d 229, 238–39 (4th Cir. 2014); see also Williams, 529

U.S. at 412(“[A]n unreasonableapplication of federal law is different from an incorrect or

erroneous application of federal law.”)(emphasis in original). Otherwise stated, “[a] state court’s

determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists

could disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86,

101 (2011).

In enacting AEPDA, Congress thus recognized that federal courts “owe state tribunals

significant deference” with respect to their determination that a state prisoner is not entitled to

habeas relief. Bennett v. Stirling, 842 F.3d 319, 323 (4th Cir. 2016). Indeed, AEDPA “reflects the

view that habeas corpus is a guardagainst extreme malfunctions in the state criminal justice

systems, not a substitute for ordinary error correction.” Harrington, 562 U.S. at 102. While the

court’s standard of review by no means “preclude[s] relief” or “impl[ies] abandonment or

abdication of judicial review,” Miller-El v. Cockrell, 537 U.S. 322,340(2003), it does mean that we

may not “second-guess the reasonable decisions of state courts,” Renico v. Lett, 559 U.S. 766, 779

(2010).

B. Ineffective Assistance of Counsel

When reviewing ineffective assistance of counsel claims by state prisoners, the court’s

deference contains an additional layerthrough the “highly deferential” lens of Stricklandv.

Washington, 466 U.S. 668 (1984). See Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012).

AEDPA and Stricklandthus provide “dual and overlapping” lenses of deference, which are applied

“simultaneously rather than sequentially.” Id. And because “[s]urmounting Strickland’s high bar is

never an easy task,” it is “all the more difficult” to establish “that a state court’s application of

Stricklandwas unreasonable ... under § 2254(d).” Morva v. Zook, 821 F.3d 517, 528 (4th Cir.

2016). “This double-deference standard effectively cabins . . . review” to determining “whether

there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

To establish ineffective assistance of counsel under Strickland, a defendant must satisfy two

standards: (1) “that counsel’s performance was deficient,” and (2) that counsel’s deficient

performance “prejudiced the defense.” 466 U.S. at 687. The first prong, deficient performance,

requires a showing “that counsel’s representation fell below an objective standard of

reasonableness,” as measured by “prevailing professional norms” and in light of “all the

circumstances” of the representation. Id. at 688. While such professional norms may be “reflected

in American Bar Association [ABA] standards and the like,” such guides are just that—“only

guides”—for determining what constitutes reasonable representation in a given case, id.at 688, and

no fixed set of rules may “take account of the variety of circumstances faced by defense counsel,”

id.at 688–89.

In assessing counsel’s performance, the court’s scrutiny “must be highly deferential.” Id.at

689. Because “[i]t is all too tempting for a defendant to second-guess counsel’s assistance after

conviction or adverse sentence,” and “all too easy for a court, examining counsel’s defense after it

has proved unsuccessful, to conclude that a particular act or omission ... was unreasonable,”

Stricklandcautions that “[a] fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight ... and to evaluate the conduct from counsel’s

perspective at the time.” Id. Courts therefore must “indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” Id. In all, the “critical

question” is whether counsel’s performance “amounted to incompetence under prevailing

professional norms, not whether it deviated from best practices.” Winston v. Pearson, 683 F.3d

489, 504 (4th Cir. 2012).

Once a defendant has established that counsel’s performance was deficient, he must then

prove that counsel’s deficient performance prejudiced his defense under Strickland’s second prong.

In the effective assistance context, prejudice means “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.

at 694. A reasonable probability, in turn, is one “sufficient to undermine confidence in the

outcome.” Id. When applying this test to the guilty plea process, the Supreme Court has held that,

to show prejudice, the Petitioner “must show that there is a reasonable probability that, but for

counsel's errors, [the Petitioner] would not have pleaded guilty and would have insisted on going to

trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

C. Brown’s Claims

Brown alleges the following claims in his § 2254 petition: (1) denial of right to be free from

unreasonable search and seizure when officers conducted an illegal protective sweep of his

residence; (2) denial of right to assistance of counsel when the court found that Brown waived his

right to counsel by requesting the removal of his attorneys; (3) denial of right to effective assistance

of counsel when counsel failed to investigate, allowed an external impediment to preclude a certain

defense, failed to object to a date set outside of the speedy trial statute, and subpoenaed the wrong

phone number; and (4) denial of right to proceed without interference by standby counsel when

standby counsel advised Brown to take a plea offer and passed Brown a notefrom the courtroom

that read “take the plea.” (Habeas Pet., Dkt. No. 1.)

1. Claim one: Fourth Amendment

A freestanding Fourth Amendment allegation is not cognizable on federal habeas review.

See Stone v. Powell, 428 U.S. 465, 482 (1976). Rather, a petitioner can proceed with his Fourth

Amendment claims onlyif he can show that he was denied a full and fair opportunity to pursue his

Fourth Amendment claims in state court. Stone, 428 U.S. at 494; Doleman v. Muncy, 579 F.2d

1258, 1265 (4th Cir. 1978)(applying Stoneand holding that where a state court provides a

mechanism under state practice to litigate Fourth Amendment claims, then this court “need not

inquire further into the merits of the petitioner's case ... unless the prisoner alleges somethingto

indicate his opportunity for a full and fair litigation of his Fourth Amendment claim or claims was

in some way impaired”).

Brown raised this issue in state court and received a full and fair suppression hearing. See

Brown, 802 S.E.2d at 199–200 (describing testimony at suppression hearing). He then raised the

issue on direct appeal, but the court of appeals rejected Brown’s argument, finding that “the

protective sweep did not taint the issuance of the search warrant and that the circuit court did not err

when it denied Brown’s motion to suppress.” Id. at 202. Brown does not argue that the suppression

hearing was unfair or that he was limited in the presentation of witnesses or other evidence.

Therefore, Brown’s Fourth Amendment will be dismissed.

2. Claim two: denial of right to counsel

Brown claims that he was denied his Sixth Amendment right to assistance of counsel when

the trial court found that Brown waived his right to counsel by askingfor the removal of his

attorneys. The state habeas court found that Brown waived this claim by pleading guilty. (Dkt. No.

12-4 at 2.)

Brown’s claim is based on Faretta v. California, 422 U.S. 806 (1975), which held that an

accused has a Sixth Amendment right to conduct his own defense, provided that he knowingly and

intelligently forgoes his right to counsel. Id. at 835. Most federal circuit courts, including the

Fourth Circuit, “treat a Farettachallenge exactly like any other non-jurisdictional challenge,

holding that a defendant waives his self-representation claim by entering a knowing and voluntary

unconditional guilty plea.” Werth v. Bell, 692 F.3d 486, 495 (6th Cir. 2012)(collecting cases

including United States v. Moussaoui,591 F.3d 263, 279–80 (4th Cir.2010)). In Werth, the Sixth

Circuit recognized that only one federal court—the Ninth Circuit—along with a numberof

California courts, have held that a defendant who pleads guilty unconditionally may still maintain a

Faretta challenge on appeal. Id. at 496 (citing United States v. Hernandez, 203 F.3d 614, 626–27

(9th Cir. 2000)). This disagreement, the court reasoned, demonstrates that “fairminded jurists could

(and do) debate whether a defendant waives his right to self-representation by entering a knowing

and voluntary unconditional plea. Under AEDPA, this is enough.” Id. (citing Harrington, 526 U.S.

at 101). So, too,it is here: the state court’s conclusion that Brown’s guilty plea foreclosed his

Faretta challengedid not violate clearly established Supreme Court precedent.

3. Claim three:ineffective assistance of counsel

In these claims, Brown makes the following assertions regarding the performance of his

counsel:

a. Attorney “failed to investigate after discovery was made available to her”

The state court found that the “record, including the transcript of a May 27, 2015 hearing

when [attorney] Commander still represented petitioner, and a hearing on June 23, 2015,

demonstrates counsel ‘spent numerous hours in the Commonwealth’s attorney’s office’ over at least

five visits reviewing the Commonwealth’s files.” (Dkt. No. 12-4 at 2–3.) Also, Brown did not

“specify what counsel failed to investigate nor does he specify what evidence he expected counsel

to have obtained.” (Id.at 3.) Thus, the court found that Brown “failed to demonstrate that

counsel’s performance was deficient or that there is a reasonable probability that, but for counsel’s

alleged errors, he would have pleaded not guilty, would have proceeded to trial, and the outcome of

the proceedings would have been different.” (Id. (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985).)

In response to the motion to dismiss, Brown argues that further investigation would have

discovered that officers conducted an illegal search before seeking a search warrant. (Pet’r’s Resp.

14, Dkt. No. 17.) This evidence, according to Brown, would have further substantiatedthat officers

used a protective sweep as a fishing expedition to find evidence in violation of the Fourth

Amendment. (Id.) Thus, Brown argues that he would have proceeded to trial instead of accepting

the guilty plea. (Id.) Brown offers no specific details or evidence, only speculation about what

further investigation would have uncovered and the effect of discovering this unknown evidence.

Moreover, Brown does not counter the state court’s reasoning that Brown’s counsel spent numerous

hours reviewing files. Under the “double-deference” standard the court must apply, there is a

“reasonable argument that counsel satisfied Strickland’s deferential standard.” Morva,821 F.3d at

528.

b. Attorney allowed an “external impediment” to preclude Brown from

constructing a defense

The state court found that Brown did not “identify the defense he would have constructed,

but for counsel’s inability to receive collect calls when she was out of the office or to visit him

during inclement weather, nor does he articulate what counsel could have done to overcome these

impediments.” (Dkt. No. 12-4 at 3.) Brown emphasizes that he had difficulty communicating with

his counsel on numerous occasions, causing a breakdown in communication which adversely

affected her preparation for the suppression hearing and in preparing for trial. (Pet’r’s Resp. 15.)

As in state court, Brown does not identify the evidence or line of defense he would have cultivated,

much less demonstrate how it would have been successful. The state court’s rejection of this claim

was not contrary to or an unreasonable application of Strickland.

c. Attorney failed to raise a speedy trial objection

The state court explained that Brown “appears to assert that counsel should have objected

when, after a December 16, 2014 suppression hearing, the trial was set for June 23, 2015.” (Dkt.

No. 12-4 at 4.) After recounting the procedural history of Brown’s pretrial proceedings (id. at 4–6),

the state court explained that Brown did not identify any grounds upon which counsel could have

objected to the trial date, “nor does he identify any reason why counsel would have wished to do so,

given petitioner’s request for co-counsel and the likelihood that Phillips would require time to

familiarize herself with the case. Similarly, petitioner fails to articulate any prejudice resulting from

the continuance.” (Id. at 6.)

Brownargues that he is attacking the validity of his conviction because his attorneys did not

properly assert and preserve his speedy trial rights. (Pet’r’s Resp. 19.) The continuances in

Brown’s case, however, were caused by Brown, who was constantly sparring with his attorneys,

forcing them to withdraw or obtain co-counsel. In August 2014, for example, the Commonwealth

explained to thetrial court that “speedy trial was not an issue because of petitioner’s actions in

requesting two prior appointed lawyers to withdraw.” (Dkt. No. 12-4 at 5.) In addition, the

following occurred at a May 2015 motions hearing:

At the beginning of the hearing, the Commonwealth asked the court to

consider several pro se motions petitioner had filed and ‘some issues

with the defendant’ that Commander wished to address first. The court

informed petitioner it would not consider his pro se motions because

he had counsel, then inquired of Commander if she wished to have co-

counsel appointed, given the number of charges then pending against

petitioner. Commander advised the court she did not feel a need for

co-counsel but petitioner was not satisfied with Commander’s

representation and ‘feels that there needs to be co-counsel.’

Commander also asked that the hearing on the Commonwealth’s

motion in limine be continued. The court agreed to appoint co-counsel

and appointed Phillips. The court advised petitioner that the speedy

trial clock had not run as petitioner had either agreed to every

continuance or had done something to cause the case to be continued,

that co-counsel was being appointed and the case was being continued

to June 23, 2015, but if co-counsel was not available, the continuance

would not be charged against the Commonwealth. Petitioner indicated

he understood and stated, ‘I thought I’ve been waiving my speedy trial.’

(Dkt. No. 12-4 at 5–6(emphasis added).)

Brown argues that the record does not establish that he waived his right to a speedy trial

(Pet’r’s Resp. 17), but the facts set forth in the state court’s opinion, “presumed to be correct,” 28

U.S.C. § 2254(e)(1), in federal court,clearly demonstrate that Brown agreed to the continuances,

and Brown has not met his “burden of rebutting the presumption of correctness by clear and

convincing evidence,” id. Thus, the state court’s resolution of this claim was not based on an

unreasonable determination of facts in light of the evidence presented in the state court proceeding.

Nor was it an unreasonable application of Stricklandfor the state court to find that counsel was not

ineffective in failing to raise a speedy trial objection when the delays were caused by Brown’s own

conduct.1

d. Attorney subpoenaed records for incorrect phone number

Thestate court rejected this claim under Strickland’s prejudice prong, reasoningthat Brown

did not “articulate what information he hoped to glean from these phone records, state that he did

not eventually obtain this information, or identify any other specific prejudicestemming from this

alleged error.” (Id.at 7.) In response, Brown argues that if the correct phone records were

subpoenaed, the records would have revealed that none of the phone recordings the Commonwealth

was proposingto use at trial were connected to Brown. (Pet’r’s Resp. 21.) Thus, the phone records

would have been suppressed as inadmissible, and Brown would have proceeded to trial instead of

pleading guilty. (Id. at 22–23.) Brown’s argument is mere speculation, unsupported by any factual

evidence which undermines the state court’s reasoning that foregoing a guilty plea was not

reasonably probable. See Lowery v. Warden, Civil Action No. 9:09-2352-CMC-BM, 2010 WL

2347033, at *5 (D.S.C. May 20, 2010) (“Petitioner has also failed to show that, evenif his counsel

1 In a related claim, Brown argues that he asked counsel Phillips to move to dismiss on speedy trial grounds,

and Phillips provided him with unspecified false information. The state court denied this claim because Phillips did not

“articulate the nature of the false information with which Phillips allegedly provided him or to identify any resulting

prejudice.” (Dkt. No. 12-4 at 7.) For many of the same reasons, this adjudication was not based on an unreasonable

determination of factors or an unreasonableapplication of Strickland.

had further investigated, he would not have proceeded with the guilty plea. To the contrary, other

than his own unsupported speculation, Petitioner has offered no evidence to show how any further

pre-trial investigation would have helped his case.”). Such speculation does not establish the

absence of any reasonable argument that Brown still would have pled guilty instead of proceeding

to trial.

4. Claim four: constitutional right to proceed pro se

Brown alleges that he was denied his right to proceed pro se without interference when his

standby counsel asked to speak with him before trial, advised him to accept a plea offer, and passed

him a note that read “take the plea.” The state court rejected this claim because Brown “failed to

offer a valid reason why he should not be bound by his representation at trial that his guilty plea was

voluntary and there is no evidence identified by petitioner that would support the contrary

conclusion that the plea was involuntary.” (Id. at 8.) As noted above, the Supreme Court has held

that an accused has a Sixth Amendment right to conduct his own defense, provided that he

knowingly and intelligently forgoes his right to counsel,Faretta, 422 U.S. at 835, and most federal

circuit courts, including theFourth Circuit, “treat a Farettachallenge exactly like any other non-

jurisdictional challenge, holding that a defendant waives his self-representation claim by entering a

knowing and voluntary unconditional guilty plea.” Werth,692 F.3d at 495. Thus, the state court’s

resolution of this claim is not contrary to, or an unreasonable application of, clearly established

federal law.

Thestate court also reasoned that theclaim could have been raised at trial and on direct

appeal, and,thus, is not cognizable in a habeas corpus action. (Id.) Therefore, the claim is

procedurally defaultedin federal court. See Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998)(“If

a state court clearly and expressly bases its dismissal of a habeas petitioner’s claim on a state

procedural rule, and that procedural rule provides an independent and adequate ground for the

dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim.”).

C. Certificate of Appealability

When issuing a final order adverse to a § 2254 petitioner, the court must issue or deny a

certificate of appealability. See Fed. R. Gov. § 2254 Cases 11(a). A certificate of appealability may

issue only if the movant has made a substantial showing of the denial of a constitutional right. 28

U.S.C. § 2253(c)(2). The movant must show that reasonable jurists could debate whether the

petition should have been resolved in a different manner or that the issues presented were adequate

to deserve encouragement to proceed further. Miller-El,537 U.S. at 338; Slack v. McDaniel, 529

U.S. 473, 483–84 (2000). In the context of a procedural ruling, the movant must demonstrate both

that the dispositive procedural ruling is debatable and that the action states a debatable claim of the

denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140–41 (2012).

The court declines to issue a certificate of appealability because Brownhas not made a

substantial showing of the denial of a constitutional right and reasonable jurists would not find the

court’s merits and procedural rulings to be debatable or wrong.

III. CONCLUSION

For these reasons, the court will deny Brown’s § 2254petition, grant the respondent’s

motion to dismiss, and decline to issue a certificate of appealability. The court will issue an

appropriate order.

Entered: September 29, 2020.

/s/ Elizabeth K. Dillon

Elizabeth K. Dillon

United States District Judge